William Nelson v. Jason Miller Investments, Inc., D/ B/ a Jaymar Travel Park
CourtDistrict Court of Appeal of Florida
Date FiledJuly 2, 2021
Docket2D20-3152
StatusPublished
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Full Opinion
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
WILLIAM NELSON,
Appellant,
v.
JASON MILLER INVESTMENTS, INC.
d/b/a JAYMAR TRAVEL PARK and
XYZ CO. 1-3,1
Appellees.
No. 2D20-3152
July 2, 2021
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Pinellas County; Patricia A. Muscarella, Judge.
Bethany L. Schneider of Schneider Injury Law, Atlanta, Georgia;
and James A. Robson of Glass & Robson, LLC, Atlanta, Georgia, for
Appellant.
1 In his complaint, Nelson indicated that "XYZ Co. 1-3 are
fictitious entities that may have shared responsibility" with Jaymar
Travel Park for the control and maintenance of the subject premises
and that if "any such entity/entities exist, [Nelson] will substitute
the legal name of said entity/entities" later. Accordingly, there is no
indication that "XYZ Co. 1-3" in this action refers to anything more
than a "placeholder" for an entity or entities that may or may not
exist; Nelson has not served "XYZ Co. 1-3" with the underlying
complaint, and "XYZ Co. 1-3" has made no appearance in this
appeal.
Dyana L. Sisti and Katherine V. Shadwick of Reynolds Parrino
Spano & Shadwick P.A., St. Petersburg, for Appellee.
ROTHSTEIN-YOUAKIM, Judge.
The trial court granted Jason Miller Investments, Inc.'s motion
to dismiss for improper venue without conducting an evidentiary
hearing and notwithstanding William Nelson's request to conduct
discovery on the issue. Although the complaint in this case does
not show on its face that venue is proper in Pinellas County, as is
alleged, it likewise does not show on its face that venue is improper
there. Accordingly, we reverse. See Interactive Retail Mgmt., Inc. v.
Microsoft Online, L.P., 988 So. 2d 717, 720–21 (Fla. 2d DCA 2008)
("A motion by the defendant to dismiss or transfer on the ground of
improper venue raises issues of fact which must be resolved by an
evidentiary hearing, unless the complaint shows on its face that
venue is improper." (citing Kinetiks.Com, Inc. v. Sweeney, 789 So.
2d 1221, 1223 (Fla. 1st DCA 2001))); see also Inverness Coca-Cola
Bottling Co. v. McDaniel, 78 So. 2d 100, 102 (Fla. 1955) ("It is of the
very nature of venue that the plaintiff selects it initially, but need
not plead or prove that his selection has been proper, and the
burden of pleading and proving that the venue is improper, if such
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is the fact, is upon the defendant."). On remand, the trial court
shall permit discovery only on the venue issue until that issue is
decided after the evidentiary hearing. See Mkt. Traders Inst., Inc. v.
Kent, 300 So. 3d 377, 377 (Fla. 4th DCA 2020).
Reversed; remanded with instructions.
LUCAS and ATKINSON, JJ., Concur.
Opinion subject to revision prior to official publication.
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